Decision Date: 09/01/95 Archive Date:
09/01/95
DOCKET NO. 93-18 934 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated 70 percent
disabling, including entitlement to a total disability
evaluation for compensation pursuant to the criteria of 38
C.F.R. § 4.16(c) (1994).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
September 1970.
This appeal arises from a December 1992 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in New Orleans, Louisiana, that denied an increased
evaluation for PTSD, currently rated 70 percent disabling,
including a total disability rating pursuant to the criteria
of 38 C.F.R. § 4.16(c). The veteran has appealed for a
total schedular rating for PTSD, which is his only
compensable service-connected disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the symptoms of his PTSD are more
severe than currently evaluated and that a total rating
should be assigned for his disorder because his symptoms
prevent him from obtaining or maintaining gainful
employment.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
files. Based on its review of the relevant evidence, and
for the following reasons and bases, it is the decision of
the Board that evidence supports granting a total schedular
rating for PTSD.
FINDINGS OF FACT
1. The symptoms of PTSD produce no more than severe social
and industrial impairment.
2. The symptoms of PTSD render the veteran demonstrably
unable to obtain or retain substantially gainful employment.
CONCLUSION OF LAW
The criteria for the assignment of a total rating for PTSD
are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7,
4.16(c), 4.132, Code 9411 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Factual Background
A summary of the veteran's VA hospitalization from September
to October 1989 reflects a diagnosis of mild PTSD. December
1989 and subsequently entered RO rating decisions granted
service connection for PTSD and assigned a 50 percent rating
for that disability, effective from July 1989. The veteran
appealed to the Board for a higher rating, and a February
1992 Board decision allowed the appeal for an increased
rating to 70 percent. A March 1992 RO rating decision
implemented the 1992 Board decision and assigned a 70
percent rating for PTSD, effective from July 1989.
In May 1992, the veteran submitted an application for
increased compensation based on unemployability. He
reported that he had last worked in 1983 as a clerk for the
United States Post Office. In his application, he reported
that he had completed two years of college.
The veteran underwent a VA psychiatric examination in June
1992. He complained of severe problems with his nerves
since his service in Vietnam. He reported daily intrusive
memories and images of his friends and people killed from
explosions in Vietnam. He said that he lived alone since
the death of his mother five years ago. He indicated that
he occasionally saw some Vietnam friends; otherwise, he said
he had a very restrictive life. He reported that he had
been married twice and had children from each marriage, and
that his children lived with their mothers. On mental
status examination, his affect was restricted, but
appropriate. His mood was described as sad. He cried
several times during the session, and he was overcome with
tears and sadness about his friends' deaths and memories of
Vietnam. There was no evidence of a thought disorder or a
perceptual disorder. He seemed preoccupied with issues
about Vietnam and combat there. The diagnoses were PTSD due
to combat in Vietnam; and major depression.
A statement from the veteran's former employer, the United
States Postal Service, dated in October 1992, indicates that
the veteran was receiving workmen's compensation based on an
injury sustained at work in September 1977. It was noted
that he last worked in January 1984.
Reports from the Social Security Administration (SSA),
including a decision by an Administrative Law Judge (ALJ),
were received in 1993. The ALJ decision dated in September
1991 indicates that the veteran was found to be entitled to
disability benefits, effective from August 1989. This
decision was based on various documents, including VA and
private medical reports of the veteran's treatment from 1977
to the 1990's. The ALJ decision indicates that the veteran
had been unable to work since 1989 because of a back injury
and anxiety, but the findings entered by the ALJ do not
reflect a back disorder. Rather, it was found, in part,
that the veteran had not engaged in substantially gainful
activity since 1983, that he had severe PTSD, and that he
met the requirements for disability benefits from SSA.
The veteran testified at a hearing before the undersigned,
sitting at the RO in August 1993. He testified to the
effect that he had leg and back problems since an automobile
accident in 1977 and that he had not worked since 1983 due
to the severity of his psychiatric symptoms. He said that
he did not get along with people and lived alone in the
streets. He said that he was receiving disability benefits
from the SSA.
A letter from A. J. Bouligny, M.D., of the United States
Postal Service, indicates that the veteran injured his back
and right leg in an automobile accident in 1977. Dr.
Bouligny noted that the veteran had gradually worsening PTSD
that was totally and permanently disabling.
A letter from a physician, who is the chief of the PTSD
clinic at a VA medical facility, dated in June 1994,
indicates that the veteran had been a patient since 1987,
when he had severe suicidal depression. The physician noted
that the veteran had participated in the outpatient PTSD
program with some brief and modest success. The doctor said
that two years ago, the veteran began to lose control of his
emotions and had increased nightmares of combat. The doctor
concluded that the veteran was totally incapacitated for any
gainful work, noting that the veteran was unemployable and
plagued by intrusive thoughts of suicide in spite of heavy
doses of medication.
B. Legal Analysis
Initially, the Board finds that the veteran's claim is well-
grounded, meaning it is plausible. 38 U.S.C.A. § 5107(a).
The Board is satisfied that all relevant facts have been
properly developed and that no further assistance to the
veteran is required in order to comply with the duty to
assist him.
In order to establish entitlement to a higher evaluation for
PTSD, the evidence must show symptoms of this disorder which
meet or more nearly approximate the criteria for a higher
rating under the appropriate diagnostic code in the Schedule
for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §
4.7.
A 70 percent evaluation is warranted for PTSD where the
ability to establish or maintain effective or favorable
relationships with people is severely impaired and the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. A 100 percent evaluation requires that
attitudes of all contact except the most intimate be so
adversely affected as to result in virtual isolation in the
community and there be totally incapacitating psychoneurotic
symptoms bordering on gross repudiation of reality with
disturbed thought or behavioral processes (such as fantasy,
confusion, panic, and explosions of aggressive energy)
associated with almost all daily activity resulting in
profound retreat from mature behavior. The individual must
be demonstrably unable to obtain or maintain employment. 38
C.F.R. § 4.132, Code 9411.
The provisions for establishing entitlement to a total
disability rating for compensation purposes based on
individual unemployability found in 38 C.F.R. § 4.16(a) are
not for application in cases in which the only compensable
service-connected disability is a mental disorder assigned a
70 percent evaluation, and such mental disorder precludes a
veteran from securing or following a substantially gainful
occupation. In such cases, a mental disorder shall be
assigned a 100 percent schedular evaluation under the
appropriate diagnostic code. 38 C.F.R. § 4.16(c).
A review of the evidence reveals that the veteran has
severely incapacitating psychiatric symptoms due to his
Vietnam experiences, and has lost control of his emotions,
despite undergoing therapy. He may not be totally isolated
from the community since he appears to have some, albeit
limited, social life, but he appears to be "severely
isolated," and his health care providers have uniformly
determined that he is severely disabled and is unable to
work.
After consideration of all the evidence, including the
veteran's testimony, the Board finds that the symptoms of
his PTSD produce no more than severe social and industrial
impairment. Under the circumstances, the Board must
conclude that the preponderance of the evidence is against
the claim for an increased schedular rating for PTSD under
the provisions of Code 9411 alone.
However, the evidence in support of the claim reveals that
the veteran has been unemployed for many years, and that he
is unemployable due to PTSD symptoms. Since his only
service-connected compensable disability is PTSD and he is
unemployable due to symptoms of this disorder, the matter of
his entitlement to a total rating for PTSD is not only
whether he meets the requirements for such a rating under
Code 9411, but rather whether he is unemployable due to a
mental disability rated as 70 percent. If he meets this
criteria, the last sentence of 38 C.F.R. § 4.16(c) compels
the assignment of a 100 percent schedular evaluation under
Code 9411. James v. Derwinski, 3 Vet.App. 41 (1992).
Inasmuch as the Board has found that symptoms of the
veteran's PTSD render him unemployable, a total schedular
rating is warranted for this disability pursuant to the
criteria of 38 C.F.R. § 4.16(c)
ORDER
A total schedular evaluation for PTSD is granted.
M. CHEEK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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